United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
LEO I. BRISBOIS, Magistrate Judge.
This matter came before the undersigned United States Magistrate Judge upon Defendant's Motion for Pre-Trial Determination of the Admissibility of Co-Conspirator's Statements Pursuant to Rule 801(d)(2)(E), [Docket No. 28]; and his Motion to Suppress Wire Interceptions, Electronic Surveillance, and Other Evidence, [Docket No. 29]. The case has been referred to the Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. The Court held a hearing on March 17, 2014, regarding the Defendant's motions for discovery,  suppression, and dismissal. For reasons outlined below, the Court recommends that Defendant's Motions [Docket Nos. 28-29], be DENIED.
James Kelly Benson ("Defendant") is charged in the present case with one count each of (1) conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and (2) possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (Indictment [Docket No. 12]). Defendant was indicted on February 12, 2014, and made the present Motions on March 5, 2014. Trial is scheduled before the Hon. Donovan W. Frank for May 19, 2014. (Order [Docket No. 38]).
II. MOTION FOR PRE-TRIAL DETERMINATION OF THE ADMISSIBILITY OF CO-CONSPIRATOR'S STATEMENTS PURSUANT TO RULE 801(d)(2)(E) [Docket No. 28]
Defendant observes that the Indictment, [Docket No. 1], alleges a conspiracy, and he asks this Court for a pretrial evidentiary hearing concerning the admissibility of any statements that his alleged co-conspirators may allege at trial that he made. (See Docket No. 28).
The Federal Rules of Evidence, themselves, do not provide for the pretrial evidentiary hearing that Defendant seeks. Rather, Rule 801(d)(2)(E) merely provides that a co-conspirator's statements made "during and in furtherance of the conspiracy" are not hearsay.
The Eighth Circuit, in Untied States v. Wood , 851 F.2d 185 (1988) has expressly held that Rule 801(d)(2)(E) does not provide for a pretrial determination of the admissibility of an alleged co-conspirator's statement. 851 F.2d at 187. As in the present case, the defendants in Wood made a motion seeking a determination before trial of whether a conspiracy existed, so as to determine whether the alleged co-conspirator's statement would be admissible. Id . Because Wood is directly on point, the Court believes it is appropriate to quote that decision at length:
In ruling on the motion, the magistrate determined that United States v. Bell , 573 F.2d 1040 (8th Cir. 1978) provided the proper procedure for the admission of coconspirator's statements. In Bell , 573 F.2d at 1044, the court provided the following procedural steps to be used when the admissibility of a coconspirator's statement is at issue:
(1) If the prosecutor propounds a question which obviously requires a witness to recount an out-of-court declaration of an alleged coconspirator, the court, upon a timely and appropriate objection by the defendant, may conditionally admit the statement. At the same time, the court should, on the record, caution the parties (a) that the statement is being admitted subject to defendant's objection; (b) that the government will be required to prove by a preponderance of the independent evidence that the statement was made by a coconspirator during the course and in furtherance of the conspiracy; (c) that at the conclusion of all the evidence the court will make an explicit determination for the record regarding the admissibility of the statement; and (d) that if the court determines that the government has failed to carry the burden delineated in (b) above, the court will, upon appropriate motion, declare a mistrial, unless a cautionary instruction to the jury to disregard the statement would suffice to cure any prejudice. See United States v. Stanchich , 550 F.2d 1294, 1298 (2d Cir. 1977). The foregoing procedural steps should transpire out of the hearing of the jury. See Fed.R.Evid. 104(c).
Since a pretrial determination of the issue of conspiracy is not part of the procedure set forth in Bell, the magistrate denied the motion stating that at trial the judge would follow, if appropriate, the procedure enunciated in Bell.
Because this procedure offers the defendants adequate protection against the jury hearing inadmissable evidence, we find no ...